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EDGAR filing of draft registration statements available October 1, 2012

The SEC has announced that EDGAR filing of draft registration statements for confidential, non-public review will be available on October 1, 2012.

Section 106(a) of the JOBS Act provides that an emerging growth company (EGC) can submit a draft registration statement to the SEC for confidential, non-public review. The first step in implementing this provision of the JOBS Act was the SEC’s establishment of a confidential hard-copy mailing system, which was replaced on May 14, 2012 by a secure e-mail submission system. On June 28, 2012, the SEC announced that it would incorporate the confidential draft registration statement filing into the current electronic EDGAR system that is used for other filings with the SEC (which we wrote about here). The EDGAR system will become available for such filings on October 1, 2012, but the secure e-mail submission system will remain in place, allowing EGCs to select either option. In the future, the SEC will announce a date by which EDGAR filing will be the only method for EGCs to file draft registration statements.

The submission process looks to be fairly straightforward, judging from the step by step instructions and screenshots released by the SEC. If you find the current EDGAR system easy to use, you will likely have no problem with this new function. The JOBS Act requires that an EGC taking advantage of the draft registration statement review must publicly file the draft registration statement and all amendments at least 21 days prior to conducting a road show. The EDGAR system allows an issuer to comply with this requirement without re-submitting the draft registration statement through the use of a “Disseminate Draft Registration Statement” button available from the draft registration statement EDGAR page.

As a reminder, an EGC is defined as a company that has total gross revenues of less than $1 billion at the end of its most recently completed fiscal year and has not conducted a registered IPO of its common stock on or prior to December 8, 2011. An EGC can maintain its special status for up to five years, although EGC status will terminate prior to the expiration of the five year period if (i) total annual gross revenue exceeds $1 billion, (ii) the worldwide public float exceeds $700 million as of the end of the second quarter following the anniversary of the EGC’s IPO or initial reporting, or (iii) the EGC’s issues more than $1 billion in non-convertible debt in any consecutive three-year period.